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Case 2:05-cr-01046-DSF Document 1215 Filed 02/28/2008 Page 42 of 129 1 2 d. Proof of Loss Not Required Undisclosed, biased decision making for personal gain, 3 whether or not tangible loss to the public is shown, constitutes 4 a deprivation of honest services. United States v. Sawyer, 85 5 F.3d 713, 724 (1st Cir. 1996)(“Sawyer I”); see also Sawyer II, 6 239 F.3d at 39; United States v. Lopez-Lukis, 102 F.3d 1164, 1169 7 (11th Cir. 1997). 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 e. Fraudulent Intent The intent to deprive the public of its right to the honest services of the government official is an essential element of the offense. See Ninth Circuit Model Criminal Jury Instruction 8.102; Frega, 179 F.3d at 803. In establishing the requisite intent, the government need not prove the defendant had the specific intent to use the mails or wires to commit the fraud. If a defendant “does an act with knowledge that use of the mails [or wires] will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he ‘causes’ the mails to be used.” See United States v. Hubbard, 96 F.3d 1227, 1229 (9th Cir. 1996) (quoting Pereira v. United States, 347 U.S. 1, 8-9 (1954)). See also United States v. Bernhardt, 840 F.2d 1441, 1447 (9th Cir. 1988). Fraudulent intent may be, and often must be, shown by circumstantial evidence. See United States v. Rasheed, 663 F.2d 843, 848 (9th Cir. 1981); United States v. Jones, 425 F.2d 1048, 1058 (9th Cir. 1979). Due to the difficulty in proving intent, 27 28 -15-
Case 2:05-cr-01046-DSF Document 1215 Filed 02/28/2008 Page 43 of 129 1 courts have traditionally held that "[a]ny proof, properly 2 connected to the defendants, which establishes the manner in 3 which the fraudulent scheme was carried into execution or the 4 intent of the parties in relation thereto is properly 5 admissible." United States v. Amrep Corp., 545 F.2d 797, 800 (2d 6 Cir. 1976); see also United States v. Jackson, 845 F.2d 880, 884 7 (9th Cir. 1988). Under this standard, evidence of similar 8 fraudulent conduct by the defendant which is not specifically 9 charged in the indictment remains admissible to prove intent and 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 a scheme to defraud. United States v. Payne, 474 F.2d 603, 604 (9th Cir. 1973); United States v. Larsen, 441 F.2d 512 (9th Cir. 1971). f. Co-Schemer Liability To be guilty of participation in a fraudulent scheme, a defendant need not be the mastermind of the scheme. See United States v. Price, 623 F.2d 587, 591 (9th Cir. 1980), overruled on other grounds, United States v. DeBright, 730 F.2d 1255, 1260 (9th Cir. 1987). Nor is it necessary for the government to prove that the defendant participated in every aspect of the scheme. See United States v. Melton, 689 F.2d 679, 684 (7th Cir. 1982). All that is required is proof beyond a reasonable doubt that the defendant was a knowing participant in the scheme. See United States v. Peters, 962 F.2d 1410, 1414 (9th Cir. 1992); United States v. Vaughn, 797 F.2d 1485, 1493 (9th Cir. 1986); Price, 623 F.3d at 592; United States v. Diggs, 649 F.2d 731, 736 (9th Cir. 1981), overruled on other grounds, United States v. McConney, 728 27 28 -16-
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